Case No. 18-481 | 8th Cir.
Preview by Taylor Dowd, Senior Online Editor
If the Court finds Article III standing in Food Marketing Institute v. Argus Leader Media and proceeds to the merits, it will consider whether to confirm a test that has been used for 40 years, or adopt a more “ordinary” definition.
South Dakota newspaper Argus Leader submitted a Freedom of Information Act (“FOIA”) request to obtain data concerning the amount of money that the U.S. Department of Agriculture (“USDA”) provides to food retailers under the Supplemental Nutrition Assistance Program (“SNAP”). USDA asserted Exemption 4, which exempts from disclosure “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4) (2012). The district court compelled disclosure, and Food Marketing Institute intervened and appealed the decision.
Exemption 4’s substantial-competitive-harm test requires a showing that competitive harm is likely to result from disclosure of the requested data. Respondent Argus Leader argues that Congress has ratified this longstanding test by adopting the language in other statutory provisions, and the test should endure. Brief for Respondent at 36–37, Food Mktg. Inst. v. Argus Leader Media, No. 18-481 (U.S. filed Mar. 18, 2019). Petitioner, Food Marketing Institute, however, asserts that the plaining meaning of “confidential” is appropriate, pointing out that the dictionary and case law define confidential as “private and not publicly disclosed,” and that the substantial-competitive-harm test is “atextual” and superfluous. Brief for Petitioner at 3, 16–22, 23, Food Mktg. Inst., No. 18-481 (U.S. filed Feb. 15, 2019).
Also before the Court is the question of if the substantial-competitive-harm test survives, what the test is exactly. Argus Leader argues that the test should stay the same, requiring a showing that competitive harm is likely. Brief for Respondent at 61–64, Food Mktg. Inst., No. 18-481 (U.S. filed Mar. 18, 2019). Food Marketing Institute, however, urges the Court to broaden the test to only require a showing of a “reasonable possibility” of injury from the disclosure. Brief for Petitioner at 47, Food Mktg. Inst., No. 18-481 (U.S. filed Feb. 15, 2019).
Argus Leader also contends that standing shortcomings could keep the Court from deciding on the merits in this case, and opines that the “Court may want to consider whether this remains the proper case for examining exemption 4.” Brief for Respondent at 1, 3, Food Mktg. Inst., No. 18-481 (U.S. filed Mar. 18, 2019). The Solicitor General pointed out that the USDA could disclose the data anyway despite having discretion through exemption 4 to withhold it, which Argus Leader believes precludes a demonstration of harm for standing purposes because the disposition of the case would not affect whether or not the data will be released. Brief for Respondent at 8, 9, Food Mktg. Inst., No. 18-481 (U.S. filed Mar. 18, 2019). Food Marketing Institute, on the other hand, asserts that the injury is redressable if USDA has the option to withhold disclosure of the food retailer data. Reply for Petitioner at 1, Food Mktg. Inst., No. 18-481 (U.S. filed Apr. 5, 2019).